On the Language of Nonviolence and the US Criminal Justice System

Michael Fischer Urges Us to Think Beyond the Binary Terms of Criminality

“After serving a state prison sentence for a nonviolent offense…”

I’ve lost count of how many essays and residency applications I’ve begun like this. Eventually I’ll count how many publications it’s made possible, how many scholarship dollars it’s earned me.

When I started writing, I didn’t specify that my offense was “nonviolent”; I just wrote that I’d been to prison. My work doesn’t focus on why I was locked up, so I thought that would be enough. But a pattern quickly emerged. Upon accepting one of my essays, almost every editor asked me to “characterize” my incarceration: something to let readers know I was one of the good ones and it was okay to empathize with me.

Before America began its recent reckoning with our criminal legal system, I didn’t question those editors’ requests. I wanted to be read. I wanted to build my byline and pad my ego. So I added the word I knew would end the prodding and keep my publication on track. Soon I began including “nonviolent” in the first paragraph of every piece in which I mentioned prison, without having to be asked. It was true, after all. And it didn’t feel like I had much of a choice.

If you’ve been imprisoned in America and want to write, your story must fit into one of three molds. You can be innocent. You can be a reformed convict who committed a violent offense long ago and spend most of your time emphasizing how sorry you are, how long it’s been since you offended, and how much you’ve changed. Even then, it can be fraught territory; when it comes to violence, no punishment is too long or severe. When I first mentioned the murder of George Floyd to my dad, he asked in a voice both hopeful and pleading, “But… they thought he’d killed somebody, right?” My dad, who considers himself liberal as the day is long, had synthesized this wildly inaccurate backstory out of nothing. He wanted it to be true, because it would help him construct a world that operates as he thinks it should: if a person so much as accused of violence is killed, good riddance. In America, the violent shall reap what they sow.

The third narrative mold is the one I’ve poured myself into. It is the Golden Goose: sexier and more dangerous than the innocent, more palatable (and publishable) than the violent. I am a “nonviolent offender.”

Recently, amid debates over prison abolition and police divestment that always provoke the same questions (“What about all the violent people?” etc.), I’ve been thinking a lot about the term “nonviolent offender.” I’ve examined my choice to so readily deploy it, juxtaposed against my growing unease with discussions about who deserves to benefit from criminal justice reform.

Almost every editor asked me to “characterize” my incarceration: something to let readers know I was one of the good ones.

Even in what many of us hope is a watershed moment, our culture’s infatuation with so-called nonviolent offenders hasn’t faltered. Everyone from Jared Kushner to Obama describes the unfair hand this population has been dealt, and support for reducing the number of people serving prison sentences for nonviolent convictions is growing. In fact, most Americans seem to think that 75 percent of people in prison are serving time for marijuana possession while the other 25 percent are in for serial rape and murder. How else to explain the evergreen idea that if we released enough “nonviolent offenders” our criminal legal system would finally be in balance, maximizing safety while minimizing harm?

More than half of the people in U.S. prisons are serving time for a crime categorized as violent. Every so-called nonviolent offender in America could be released today, and tomorrow we would still have one of the highest rates of incarceration on earth. Returning to the incarceration levels of the early 1970s—the years just before the American prison population exploded, with little to no proven effect on public safety—would require releasing 80 percent of those currently incarcerated. That bears repeating, for the self-styled liberals in the back: four out of five human beings currently in prison, most of them branded as violent, would have to come home.

Decarceration on anywhere near that scale is a political nonstarter. The specter of murderers roaming the streets keeps any politician, Democrat or Republican, from talking about what would actually be required for our criminal legal system to undergo a genuine shift—despite people from across the political spectrum claiming they now realize such change is necessary. Language that stigmatizes so-called violent criminals as irredeemable traffics in fear and self-righteousness, with little supporting data; “violent offenders” have a far lower recidivism rate when compared to their “nonviolent” counterparts. But perhaps the most absurd thing about the alarmist rhetoric aimed at those imprisoned for violent offenses is that most people who’ve committed acts of violence, even if we confine that term to its strictly legal sense, have no criminal record.

It’s estimated that anywhere from 5 to 25 percent of sexual assaults are never reported, and only about one-fifth of those reported lead to an arrest. All told, less than 1 percent of sexual assaults lead to a criminal conviction. Forty percent of murders are never solved. If you commit a so-called violent crime in America, you’re far more than likely to get away with it. As Derecka Purnell put it in a recent article for The Atlantic, the reply to the question “What will we do with murderers and rapists?” is simple: Which ones?

People in prison for violent convictions have often caused profound harm, but these individuals aren’t the most violent or the only violent people among us. They’re just among the relatively few who got caught—and that, more than anything, is what separates them from the rest of us.

The distinction between violent and nonviolent is, moreover, a false binary. It is, as the civil rights lawyer Alec Karakatsanis points out, a rhetorical device designed to highlight certain forms of harm in the public consciousness while downplaying others. Countless forms of structural violence go unnamed, financial crimes that ruin millions of lives are given the genteel label “white collar,” and environmental violence on a global and intergenerational scale is largely ignored by the carceral state. Meanwhile, a person struggling with untreated mental illness who grabs a stranger’s arm has committed assault and is now officially categorized as a violent criminal.

For the self-styled liberals in the back: four out of five human beings currently in prison, most of them branded as violent, would have to come home.

All but the most progressive among us might be tempted to roll their eyes at what they believe is a false equivalence between more or less proximate violence. Forms of violence diffused across time and space, or forms that don’t result in immediate bodily harm, are often invisible and therefore discounted—the violence of oppression or erasure, for example, or the actions of Amy Cooper. To make arbitrary distinctions between what is violent and what isn’t is to engage in moral gerrymandering: drawing lines around our own violence, carving out spaces in which we are always blameless, separated from those who are the real problem. In a hyperconnected world in which we know the higher-order consequences of our choices, the systems we’re complicit in, believing violence only happens with a gun or knife in hand is beyond naive.

Violence seeps through the cracks in each one of us. There is no such thing as a wholly nonviolent person. Some of us have been held accountable for most of the violence we’ve committed and are condemned and discriminated against accordingly; others have been held accountable for almost none of ours and therefore aren’t publicly compelled to admit to any, on the page or elsewhere.

The best way to learn this, it turns out, is to be charged with a crime. As soon as I was tainted with a criminal record—my opinion rendered irrelevant by my low standing—family members, friends, and even near-strangers took me as their confessor. An older white lady once told me about a long-buried dalliance with theft, drunk driving, and tens of thousands of dollars in property damage she’d inflicted for fun; a middle-aged mentor gave a fake shiver as he confided a number of sexual encounters in his college years that “could’ve gone either way.”

Where each of us stands on the spectrum of accountability says as much about our privilege and luck as it does about our virtue. Yet few of us ever let go of the idea that we’re intrinsically better than those who’ve been prosecuted for committing their violent acts, and that those people should suffer as the rest of us stand by. It’s this attitude that makes me fear significant reform of the carceral system is unrealistic, in this moment or any other. 

I’ve been slow to confront the ramifications of advertising myself as a nonviolent offender. I didn’t want to admit that hiding behind nonviolence bolstered the stigma attached to those who’ve been convicted of violent crimes. By holding up my supposed nonviolence as an asset meant to water down my criminality and placate the literary apparatus, I further marginalized other incarcerated and formerly incarcerated people for my own benefit—this while pitching myself to editors and application committees as someone writing in solidarity with those same populations.

Violence seeps through the cracks in each one of us. There is no such thing as a wholly nonviolent person.

When it came time to get what I wanted, gain access to power, and shore up my self-image, I knew what to do. I reproduced the same cowardly, unexamined logic that many of us use to claim superiority over others. I left the words unwritten but everyone saw them, just as I intended: I may be this, but at least I’m not that.

“Sometimes our best efforts at self-preservation,” writes Melissa Febos, “look like a kind of violence.” Having lived inside the carceral system doesn’t make me immune to the original American hypocrisy: enacting forms of violence upon the supposedly violent, in service of the message that violence is wrong.

By the time I stopped describing my offense as nonviolent, it was conveniently too late. Editors and producers would simply read something of mine that had already been published, then insert a reference to nonviolence without asking my permission. Each time I swore at my computer screen, then went along with it.

When I once had the opportunity to mount my soapbox, it didn’t go as planned. I was two days from getting an essay published in one of my dream magazines. The editors had already sent the page proofs and my payment was about to process when I received one final email; the managing editor wanted to verify that I was convicted of a nonviolent crime.

The essay took place after my release from prison, on a beach. It referenced in passing that I’d been locked up and didn’t mention why. The editors said their query was routine fact checking, but they weren’t verifying a fact in my work; they were supplying one. Like many editors before them, their priority was to avoid endorsing the wrong type of convict. If I was “violent,” I didn’t deserve a platform. 

I asked the editors which fact this information was meant to verify, since the nature of my crime wasn’t mentioned in the essay. I said it’d be one thing to confirm that I had indeed been imprisoned, which was the only fact germane to the content of the piece, but that their query seemed aimed at something else. The editors ignored me and never ran the essay.

By holding up my supposed nonviolence as an asset meant to water down my criminality and placate the literary apparatus, I further marginalized other incarcerated and formerly incarcerated people for my own benefit.

I sent a number of increasingly unhinged follow-up emails, the last in all caps. The irony wasn’t lost on me: these people suspected me of having a violent conviction, I was doing nothing to convince them otherwise, and they knew I knew where their office was. I wanted to scare them, wanted them to hate me as much as I hated them. Or, if they’d just respond to my emails, perhaps I still wanted to convince them of how nonviolent I am so they’d pay me and print my essay.

For a while I was outraged, until I remembered how much “nonviolent” has already given me—or rather, how much I’ve taken from it. The spiked essay was a small price to pay. I remembered responding to submission calls that were particularly interested in hearing from writers of color, and deliberately leaving out the fact that I’m white. If the editors knew only that I’ve been to prison, maybe they’d think I’m Black. Maybe that would help my chances of getting published and bring me closer to the success I felt I’d earned. I told myself I was playing on the racism of others, those who think everyone locked up is a person of color. But I was weaponizing my own racism and selfishness, committing my own act of violence.

Ever since being released, I’ve clung to writing as a survival tool. I’ve used it to reassert my place in the world and redefine myself as something other than a loser. But some of the words I’ve chosen have made it harder for others to do the same. I have a habit of complaining about society’s hypocrisy and myopia in vilifying “violent criminals” as untouchables. But as it turns out, part of how we reached this point in our cultural discourse is due to people like me.

The spiritual leader Meher Baba once said, “Sinner and saint will appear to be waves differing in size and magnitude, on the surface of the same ocean…. Nobody is utterly lost and nobody need despair.” My imprisonment for a so-called nonviolent offense belies all of the violence I’ve engaged in and benefitted from, ranging from the intimate to the structural. Very few instances of my violence have been technically illegal, and I’ve never been held accountable for committing the vast majority of it. 

When I describe myself as a nonviolent offender, the only thing you’ve learned about me is that I haven’t yet been criminally convicted for any of the violent things I’ve done; we’re the same in that way, you and I. My moral worth relative to yours, my eligibility for redemption, remains unchanged. The ocean around us registers hardly a ripple.

I’m aware that, taken to an extreme, my perspective would arrive at a point where any moral slight could be categorized as violent, the word stripped down to insignificance. I don’t pretend to know exactly where the line should be drawn. I just know that right now, the responsibility for America’s collective violence is being borne primarily by the most abused, traumatized, and underserved people in this country.

The most sobering thing about violence is that no one encounters it for the first time by committing it.

The most sobering thing about violence—best stated by Danielle Sered, the executive director of Common Justice—is that no one encounters it for the first time by committing it. Every one of us is visited by violence before we ever visit it on someone else. Whether those initial experiences are either transferred or transformed is not a matter of character but of resources, time, and grace. Those who inflict an exceptional amount of violence were, with very few exceptions, subjected to an even greater amount themselves. 

The carceral, retributive answer to this truth prescribes more punishment and harm, like gas poured in the hopes of putting out a fire. There are better ways to respond, practices rooted in restorative and transformative justice, which require true accountability and repair from those who cause harm—a group of people that, sooner or later, each of us will find ourselves a part of. But taking that path means a long, humbling look at what we believe those who inflict violence “deserve.”

I like to imagine Meher Baba’s scene of us as waves, although I doubt it bears any resemblance to what’s coming. The election approaches, the pandemic flares, the news cycle churns. I worry that Americans are bound to accept a few piecemeal reforms resembling the First Step Act, free a few thousand people (all of them “nonviolent”), and then declare victory and move on. I worry we’ll keep buying sweatshop-made athleisure pants, eating animals tortured and killed on factory farms, hoarding resources while others suffer for lack of basic necessities. 

When people debate whether the dark heart of someone imprisoned for violence can be salvaged, I can’t help but ask the opposite question. I wonder if we are the ones who are utterly lost: pretending the violent are other people far away, waves in a different sea.

Michael Fischer
Michael Fischer
Michael Fischer teaches for the Odyssey Project, a free college credit program for income-eligible adults. He is a Luminarts Cultural Foundation fellow, Illinois Arts Council grantee, finalist for the PEN America Writing for Justice Fellowship, and was cited in Best American Essays 2019. His nonfiction appears in the New York Times, Salon, The Sun, Orion, Guernica, The Rumpus, and elsewhere.





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